Respondents Brief — Iowa Pork Producers Association, Petitioner v. Rob Bonta, Attorney General of California, et al.

No. 24-728

In the Supreme Court of the United States

IOWA PORK PRODUCERS ASSOCIATION,

Petitioner,

v.

ROB BONTA, IN HIS OFFICIAL CAPACITY AS ATTORNEY

GENERAL OF CALIFORNIA, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

April 11, 2025

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

SAMUEL T. HARBOURT*

Deputy Solicitor General

R. MATTHEW WISE

Supervising Deputy

Attorney General

KRISTIN A. LISKA

Deputy Attorney General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

455 Golden Gate Avenue

Suite 11000

San Francisco, CA 94102-7004

(415) 510-3919

Samuel.Harbourt@doj.ca.gov

*Counsel of Record

i

QUESTIONS PRESENTED

California’s Proposition 12 restricts the in-state

sale of certain pork products, regardless of whether

they originate in-state or out-of-state. In National

Pork Producers v. Ross, 598 U.S. 356 (2023), this Court

upheld that statute against a challenge under the

dormant Commerce Clause. The Court unanimously

rejected the theory that Proposition 12 has impermissible extraterritorial effects. See id. at 375. And five

Justices “decline[d] . . . petitioners’ incautious invitation[]” (id. at 391) to invalidate Proposition 12 under

the balancing test set forth in Pike v. Bruce Church,

Inc., 397 U.S. 137 (1970), although they did not all

agree on a single rationale. The questions presented

here are:

1. Whether petitioner stated a claim that Proposition 12 is impermissibly discriminatory under the

dormant Commerce Clause.

2. Whether the fractured Pike analysis in National

Pork should be understood as “holding[]” (Pet. 19) that

“a challenge to Proposition 12 states a claim under

Pike” (id. at 16).

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

Argument ..................................................................... 5

Conclusion.................................................................. 16

iii

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Sandoval

532 U.S. 275 (2001) .............................................. 13

Baldasar v. Illinois

446 U.S. 222 (1980) .............................................. 13

Ballinger v. City of Oakland

24 F.4th 1287 (9th Cir. 2022) .............................. 10

Dobbs v. Jackson Women’s Health Org.

597 U.S. 215 (2022) .............................................. 15

Eastern Enter. v. Apfel

524 U.S. 498 (1998) .............................................. 15

Energy Mich., Inc. v. Mich. Pub. Serv. Comm’n

126 F.4th 476 (6th Cir. 2025) ............................ 6, 9

Exxon Corp. v. Governor of Md.

437 U.S. 117 (1978) .......................................... 6, 11

Flynt v. Bonta

131 F.4th 918 (9th Cir. 2025) .............................. 11

Forever Fencing, Inc. v. Bd. of Cnty. Comm’rs

of Leavenworth Cnty.

2024 WL 3084973 (10th Cir. June 21, 2024)....... 14

Hicks v. Miranda

422 U.S. 332 (1975) .............................................. 10

iv

TABLE OF AUTHORITIES

(continued)

Page

Holland v. Big River Minerals Corp.

181 F.3d 597 (4th Cir. 1999) .......................... 14, 15

Hopkins v. Jegley

968 F.3d 912 (8th Cir. 2020) ................................ 15

Hughes v. United States

584 U.S. 675 (2018) .............................................. 13

Hunt v. Wash. Apple Advert. Comm’n.

432 U.S. 333 (1977) ................................................ 6

Int’l Franchise Ass’n, Inc. v. City of

Seattle

803 F.3d 389 (9th Cir. 2015) .................................. 9

June Med. Serv. v. Russo

591 U.S. 299 (2020) .............................................. 15

Just Puppies, Inc. v. Brown

123 F.4th 652 (4th Cir. 2024) .............................. 14

King v. Palmer

950 F.2d 771 (D.C. Cir. 1991) (en banc) ........ 10, 12

League of United Latin Am. Citizens v.

Perry

548 U.S. 399 (2006) .............................................. 13

Mandel v. Bradley

432 U.S. 173 (1977) .............................................. 10

v

TABLE OF AUTHORITIES

(continued)

Page

Marks v. United States

430 U.S. 188 (1997) ................................. 5, 9-12, 15

Minnesota v. Clover Leaf Creamery Co.

449 U.S. 456 (1981) ................................................ 6

N. Am. Meat Inst. v. Becerra

420 F. Supp. 3d 1014 (C.D. Cal. 2019) .................. 2

N. Am. Meat Inst. v. Becerra

825 F. App’x 518 (9th Cir. 2020) ........................ 2, 9

N. Am. Meat Inst. v. Bonta

141 S. Ct. 2854 (2021) ........................................ 2, 9

Nat’l Pork Producers Council v. Ross

456 F. Supp. 3d 1201 (S.D. Cal. 2020)................... 2

Nat’l Pork Producers Council v. Ross

6 F.4th 1021 (9th Cir. 2021) .................................. 2

Nat’l Pork Producers Council v. Ross

598 U.S. 356 (2023) .............................i, 1-11, 13-15

NextEra Energy Cap. Holdings, Inc. v. Lake

48 F.4th 306 (5th Cir. 2022) .................................. 9

Nichols v. United States

511 U.S. 738 (1994) .............................................. 13

Pike v. Bruce Church, Inc.

397 U.S. 137 (1970) ..................... i, 2-5, 9-11, 13, 14

vi

TABLE OF AUTHORITIES

(continued)

Page

R & M Oil & Supply, Inc. v. Saunders

307 F.3d 731 (8th Cir. 2002) .................................. 9

Rapanos v. United States

547 U.S. 715 (2006) .............................................. 12

Sackett v. EPA

598 U.S. 651 (2023) ........................................ 12, 14

Seminole Tribe of Fla. v. Florida

517 U.S. 44 (1996) ................................................ 12

Teague v. Lane

489 U.S. 288 (1989) .............................................. 11

Town of Southold v. Town of E. Hampton

477 F.3d 38 (2d Cir. 2007)...................................... 9

Truesdell v. Friedlander

80 F.4th 762 (6th Cir. 2023) ................................ 14

United Haulers Ass’n v. OneidaHerkimer Solid Waste Mgmt. Auth.

550 U.S. 330 (2007) ................................................ 7

United States v. Donovan

661 F.3d 174 (3d Cir. 2011)............................ 13, 14

United States v. Johnson

467 F.3d 56 (1st Cir. 2006)............................. 12, 14

United States v. Robison

505 F.3d 1208 (11th Cir. 2007) ............................ 12

vii

TABLE OF AUTHORITIES

(continued)

Page

Vieth v. Jubelirer

541 U.S. 267 (2004) .............................................. 13

STATUTES AND COURT RULES

Cal. Health & Safety Code § 25990 ........................ 1, 6

Cal. Health & Safety Code § 25991(e) .................... 1, 8

Former Cal. Health & Safety Code § 25990

(2015) ...................................................................... 8

7 U.S.C. § 192(b) .......................................................... 3

S. Ct. R. 14.1(a) .......................................................... 15

OTHER AUTHORITIES

Cal. Dep’t of Food & Agric., Lessons

About Proposition 12 From Recent

Pork Producer Visits (July 2022),

https://www.cdfa.ca.gov/AHFSS/pdfs/

prop-12_pork_producer_visits.pdf ......................... 8

Global Ag Media, Great Improvement Seen

in US Pork Sector in 2024 (July 16,

2024), https://tinyurl.com/4tx5uz54..................... 13

1

STATEMENT

1. In 2018, California voters adopted Proposition

12, which “revised the State’s existing standards for

the in-state sale of eggs and announced new standards

for the in-state sale of pork and veal products.” National Pork Producers Council v. Ross, 598 U.S. 356,

365 (2023). In relevant part, “Proposition 12 forbids

the in-state sale of whole pork meat that comes from

breeding pigs (or their immediate offspring) that are

‘confined in a cruel manner.’” Id. at 365-366 (quoting

Cal. Health & Safety Code § 25990(b)(2)). The law

“deem[s] confinement ‘cruel’ if it prevents a pig from

‘lying down, standing up, fully extending [its] limbs, or

turning around freely,’” id. at 366, or if there is “less

than 24 square feet of usable floorspace per pig,” Cal.

Health & Safety Code § 25991(e)(3).

In the “spirited debate” preceding the enactment of

Proposition 12, proponents argued that it “would go a

long way toward eliminating pork sourced” in an inhumane “manner ‘from the California marketplace.’”

Nat’l Pork, 598 U.S. at 366. The proponents “also suggested that the law would have health benefits for consumers because ‘packing animals in tiny, filthy cages

increases the risk of food poisoning.’” Id. Similar concerns have long guided the choices of lawmakers when

“enact[ing] laws aimed at protecting animal welfare.”

Id. at 365. And laws of that nature often “require some

farmers and processors to incur new costs.” Id. at 366.

In the case of Proposition 12, the ballot materials

warned that the increased cost of producing compliant

pork would likely be “‘passed through’ to California

consumers” in the form of higher prices. Id. The voters nonetheless approved the measure, with nearly

63% voting in favor. Id. at 365.

2

2. This petition is not the first challenge to Proposition 12 to reach this Court. In 2021, this Court denied certiorari in North American Meat Institute v.

Bonta, 141 S. Ct. 2854 (2021) (No. 20-1215). The

plaintiff in that suit argued that Proposition 12 impermissibly discriminates against out-of-state pork businesses. See N. Am. Meat Inst. v. Becerra, 420 F. Supp.

3d 1014, 1024 (C.D. Cal. 2019). It also argued that the

law “impose[s] confinement standards for farm animals located outside California” in violation of “the extraterritoriality doctrine.” Id. at 1029. Finally,

invoking the test in Pike v. Bruce Church, Inc., 397

U.S. 137 (1970), the plaintiff contended that Proposition 12 unduly burdens interstate commerce. See N.

Am. Meat Inst., 420 F. Supp. 3d at 1032; see also id. at

1034 (denying preliminary injunctive relief); 825 F.

App’x 518 (9th Cir. 2020) (affirming).

In National Pork Producers Council, this Court

considered similar arguments. Unlike the challenger

in the earlier case, the plaintiffs in National Pork “conceded that California’s law does not implicate the antidiscrimination principle at the core of this Court’s

dormant Commerce Clause cases.” 598 U.S. at 371.

But they echoed the theory that Proposition 12 violates an “‘almost per se’ rule forbidding enforcement of

state laws that have the ‘practical effect of controlling

commerce outside the State.’” Id. And they also alleged that Proposition 12 failed the test in Pike. Id. at

377. The district court dismissed the complaint, see

456 F. Supp. 3d 1201 (S.D. Cal. 2020), and the court of

appeals affirmed, see 6 F.4th 1021 (9th Cir. 2021).

After granting certiorari, this Court unanimously

rejected challengers’ extraterritoriality theory. See,

e.g., Nat’l Pork, 598 U.S. at 375. Five Justices also rejected the challengers’ Pike claim. Id. at 377. Four

3

members of the Court—Justices Gorsuch, Thomas, Sotomayor, and Kagan—concluded that the challengers

failed to plausibly allege that Proposition 12 “imposes

‘substantial burdens’ on interstate commerce.” Id. at

383 (plurality). Three members of the Court—Justices

Gorsuch, Thomas, and Barrett—rejected the Pike

claim on the alternative ground that Proposition 12’s

alleged burdens and benefits are “incommensurable.”

Id. at 382 (plurality); see id. at 381 (“How is a court

supposed to compare or weigh economic costs (to some)

against noneconomic benefits (to others)?”).

Justice Barrett wrote separately to elaborate why

she viewed “the benefits and burdens of Proposition 12

[as] incommensurable.” 598 U.S. at 393 (Barrett, J.,

concurring in part). “California’s interest in eliminating allegedly inhumane products from its markets,”

she explained, “cannot be weighed on a scale opposite

dollars and cents—at least not without second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for

politicians.” Id. Justice Barrett added, however, that

“[i]f the burdens and benefits were capable of judicial

balancing,” she would have held that the plaintiffs had

sufficiently alleged a substantial burden on interstate

commerce. Id. at 394.

3. The petitioner here is the Iowa Pork Producers

Association. In 2021, it filed its own dormant Commerce Clause challenge to Proposition 12. Pet. App.

93a. Petitioner also raised claims under the Due Process Clause, the Privileges and Immunities Clause,

and the Packers and Stockyards Act, 7 U.S.C. § 192(b).

See Pet. App. 119a-135a. The district court denied

preliminary injunctive relief and dismissed petitioner’s complaint. See id. at 18a-90a. The court of

4

appeals affirmed in an unpublished opinion. See id. at

1a-15a.

With respect to the dormant Commerce Clause

challenge, the court of appeals first rejected petitioner’s argument that Proposition 12 is impermissibly discriminatory, emphasizing that Proposition 12

“bans the sale of a product regardless of whether the

product is intrastate or interstate in origin.” Pet. App.

3a. The court also found it implausible that Proposition 12 was motivated by a “discriminatory purpose”

or would have “discriminatory effects.” Id. at 3a, 4a.

Turning to the Pike claim, the court viewed petitioner’s allegations as materially indistinguishable

from the allegations considered—and deemed inadequate to state a claim—in National Pork. See id. at 5a

(“We previously considered and rejected such a challenge.”); id. at 6a (“The Supreme Court later affirmed[.]”).

Judge Callahan concurred in the judgment. In her

view, “there may . . . be a single underlying rationale”

in this Court’s National Pork opinions that could

“save[]” petitioner’s Pike claim. Pet. App. 12a (internal quotation marks omitted). “By my count,” Judge

Callahan explained, “a majority of the Justices would

find that (i) Proposition 12 is compatible with Pike balancing, and (ii) [petitioner] plausibly alleged that

Proposition 12 imposes a substantial burden.” Id. As

Judge Callahan acknowledged, however, that approach to vote-counting would be contrary to existing

circuit precedent on the appropriate methodology for

interpreting the precedential significance of Supreme

Court opinions. See id. at 12a, 15a.

Petitioner sought rehearing en banc, but no judge

requested a vote on the petition. Pet. App. 17a.

5

ARGUMENT

In National Pork Producers v. Ross, 598 U.S. 356

(2023), the Court rejected a dormant Commerce

Clause challenge to California’s Proposition 12. That

statute has not changed since then. Petitioner now

asks the Court to consider another dormant Commerce Clause challenge to Proposition 12. But it provides no persuasive reason for the Court to do so.

Petitioner contends that review is warranted because

it advances a claim that was “conceded away” (Pet. 26)

in National Pork: that Proposition 12 “directly discriminate[s] against out-of-state farmers” (id. at 29).

The reason that claim was conceded away in National

Pork is that it lacks any merit—Proposition 12 enacts

a neutral sales restriction that treats in-state and outof-state farmers the same. Petitioner also asks the

Court to review its claim under Pike v. Bruce Church,

Inc., 397 U.S. 137 (1970). But it acknowledges that

the claim is “just like the one” that five Justices of this

Court rejected in National Pork. Pet. 16

The only thing genuinely new about this petition is

its argument that, under Marks v. United States, 430

U.S. 188 (1997), the decision in National Pork should

be read to contain a “holding[]” by a “five-Justice dissenting ‘majority’” establishing that “a challenge to

Proposition 12 states a claim under Pike.” Pet. 16, 19,

26. That argument misunderstands both the Marks

rule and the separate opinions in National Pork. In

any event, this is not an appropriate case for considering academic questions about how the Marks rule

should be understood or applied. Regardless of what

“binding principles of law” (id. at 4) emerge from the

fractured Pike analysis in National Pork, the result in

that case was to reject a claim that was materially

6

identical to the one advanced by petitioner here. That

result controls the outcome here.

1. Petitioner first asks the Court to review its

claim that Proposition 12 discriminates against interstate commerce. Pet. ii. It emphasizes that while the

challengers in National Pork “disavow[ed] any discrimination claim,” id. at i, “[t]here is no such concession” here, id. at 16. But the challengers in National

Pork made that concession for good reason. Proposition 12 is plainly nondiscriminatory: its restriction on

the in-state sale of certain animal products applies

whether the products originate in California or come

from outside the State. See Cal. Health & Safety

Code § 25990(b)(2).

In petitioner’s view, Proposition 12 nonetheless

amounts to “express discrimination” because it has a

“disparate impact” on out-of-state pork businesses.

Pet. 15. As this Court has recognized, however, facially neutral state laws are not impermissibly discriminatory for purposes of the dormant Commerce

Clause merely because they disproportionately burden out-of-state businesses. See, e.g., Minnesota v.

Clover Leaf Creamery Co., 449 U.S. 456, 471-472

(1981); Exxon Corp. v. Governor of Md., 437 U.S. 117,

126 (1978). Neutral state laws qualify as discriminatory in “practical effect” only where they are protectionist—that is, where they favor in-state businesses

at the expense of their out-of-state competitors. E.g.,

Hunt v. Wash. Apple Advert. Comm’n., 432 U.S. 333,

350 (1977); see also Energy Mich., Inc. v. Mich. Pub.

Serv. Comm’n, 126 F.4th 476, 488-489 (6th Cir. 2025)

(“the antidiscrimination principle is . . . a response to

protectionist state law measures that proliferated during the pre-ratification period”).

7

Petitioner raises no plausible allegation of protectionism here. True, “some out-of-state firms may face

difficulty complying (or may choose not to comply)

with Proposition 12.” Nat’l Pork, 598 U.S. at 385 (plurality). But “from all anyone can tell, other out-ofstate competitors seeking to enhance their own profits

may choose to modify their existing operations or create new ones to fill the void.” Id. Indeed, “a number

of smaller out-of-state pork producers . . . filed an amicus brief ” in National Pork “hailing the ‘opportunities’

Proposition 12 affords them to compete” with larger

firms. Id. at 385 n.3 (citing Br. for Small and Independent Farming Businesses 1, 12, 19-20).

The principal economic impact of Proposition 12,

moreover, is likely to be higher prices for in-state consumers. See, e.g., Nat’l Pork, 598 U.S. at 386 (plurality). That is not the kind of harm that the dormant

Commerce Clause is intended to prevent: where “the

most palpable harm . . . is likely to fall upon the very

people who voted for” the challenged law, “[t]here is no

reason [for the courts] to step in.” United Haulers

Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth.,

550 U.S. 330, 345 (2007).

Petitioner contends that in-state farmers benefited

from “unfair lead time” because they were subject (beginning in 2015) to an earlier voter initiative, Proposition 2, which prohibited the in-state confinement of

breeding pigs in conditions where they cannot turn

around. Pet. 15; see id. at 4-5, 28. But that history

does not establish economic protectionism. California’s in-state pork industry is tiny—“California imports almost all the pork it consumes.” Nat’l Pork, 598

8

U.S. at 367.1 And the production methods that must

be followed to make Proposition 12-compliant pork extend beyond the previously enacted in-state confinement restrictions. 2 In response to Proposition 12,

much of the industry moved quickly to develop confinement practices that comply with those restrictions. 3

In light of those circumstances,

Proposition 2’s earlier enactment provides no plausible basis for inferring that the voters conferred a material or lasting advantage on in-state economic

interests. And petitioner’s complaint does not contain

any specific allegations supporting such an inference.

See, e.g., Pet. App. 3a-4a, 84a-85a.

This case marks the second time that the Ninth

Circuit has rejected a discrimination challenge to

Proposition 12 under the dormant Commerce Clause.

See Nat’l Pork Pet. for Writ of Cert. 2, https://tinyurl.com/4rnvuvu9 (“California imports 99.87% of its pork.”);

Nat’l Pork Pet. App. 205a, https://tinyurl.com/aevamkz6 (similar).

1

2 Proposition 2 prohibited farmers in California from confining

pigs during pregnancy in a manner that prevents them from

“[l]ying down, standing up,” “fully extending [their] limbs,” or

“[t]urning around freely.” Former Cal. Health & Safety Code

§ 25990 (2015). Proposition 12 bars the in-state sale of pork if it

was derived from a breeding pig (or its offspring) and the breeding pig was confined in a way that either (i) prevented it from

“lying down, standing up, fully extending [its] limbs, or turning

around freely” or (ii) denied it at least “24 square feet of usable

floorspace per pig.” Cal. Health & Safety Code § 25991(e)(1), (3).

The first requirement of Proposition 12 took effect shortly after

its enactment in late 2018; the latter requirement’s effective date

was January 1, 2022. See id.

3 See, e.g., Cal. Dep’t of Food & Agric., Lessons About Proposition

12 From Recent Pork Producer Visits (July 2022),

https://www.cdfa.ca.gov/AHFSS/pdfs/prop-12_pork_producer_visits.pdf (describing the state of compliance as of July

2022); Nat’l Pork, 598 U.S. at 385 n.3 (plurality) (similar).

9

See Pet. App. 2a-4a; N. Am. Meat Inst. v. Becerra, 825

F. App’x 518, 519 (9th Cir. 2020). This Court declined

to review that question when it denied the petition in

North American Meat. See Pet. for Writ of Cert. 2227, N. Am. Meat Inst. v. Bonta, No. 20-1215 (June 28,

2021), cert. denied, 141 S. Ct. 2854 (2021). And petitioner does not argue that any relevant conflict of authority has emerged since then. Nor is any conflict

likely to emerge. There is broad agreement among the

courts of appeals about the legal standards governing

discrimination claims under the dormant Commerce

Clause.4 And petitioners’ discrimination theory turns

on the timing and sequence of specific voter enactments in a single State.

2. Petitioner also contends that the court of appeals erred in holding that the complaint failed to

state a claim under Pike v. Bruce Church, Inc., 397 U.S.

137 (1970). See Pet. 16-25, 29-30. That question, too,

does not warrant further review. This Court already

rejected a materially identical claim in National Pork.

Petitioner’s arguments about the application of the

Marks rule to that decision lack merit and do not implicate any genuine conflict of authority.

a. Petitioner acknowledges that its Pike claim is

“just like the one” in in National Pork. Pet. 16. Five

justices of this Court rejected that claim. Supra pp. 24 See, e.g., Town of Southold v. Town of E. Hampton, 477 F.3d 38,

48 (2d Cir. 2007) (recognizing that a state law can be impermissibly discriminatory “in three ways”: (i) “on its face,” (ii) “by harboring a discriminatory purpose,” or (iii) “in its effect”); NextEra

Energy Cap. Holdings, Inc. v. Lake, 48 F.4th 306, 321 (5th Cir.

2022) (same); Energy Mich., 126 F.4th at 487 (same); R & M Oil

& Supply, Inc. v. Saunders, 307 F.3d 731, 734 (8th Cir. 2002)

(same); Int’l Franchise Ass’n, Inc. v. City of Seattle, 803 F.3d 389,

399 (9th Cir. 2015) (same).

10

3. To the extent there are any distinctions between

the two claims, they do not improve petitioner’s prospects. Although petitioner advances arguments

about “direct discrimination” in support of its Pike

claim (Pet. 18), those arguments fail for the reasons

discussed above. Petitioner’s remaining allegations

boil down to the concern that Proposition 12 imposes

various economic burdens on farmers. See, e.g., id.

(“costly changes to farming operations”). But those allegations are no different in kind from the allegations

that were before the Court in National Pork; indeed,

the allegations here are far less detailed than the ones

that five justices already deemed inadequate. Compare Pet. App. 95a-119a, with Nat’l Pork Pet. App.

155a-230a, https://tinyurl.com/aevamkz6.

To avoid the same fate, petitioner advances a novel

theory of how the Marks rule should apply to the splintered Pike analysis in National Pork. See Pet. 16-19;

infra pp. 11-13. But even if that theory were an appropriate way of discerning “what constitutes binding

principles of law within a fractured Supreme Court decision,” Pet. 4, it would not help petitioners here. The

result of a Supreme Court decision is binding even if

the Court provides no reasoning or fails to agree on

reasoning. See, e.g., Mandel v. Bradley, 432 U.S. 173,

176 (1977); King v. Palmer, 950 F.2d 771, 784 (D.C.

Cir. 1991) (en banc); Ballinger v. City of Oakland, 24

F.4th 1287, 1295 (9th Cir. 2022). In applying that rule,

courts ask whether the issue presented in the case at

hand is “sufficiently the same” as in the prior case that

produced a summary or fractured ruling. E.g., Hicks

v. Miranda, 422 U.S. 332, 346 n.14 (1975). Because

petitioner’s Pike claim is “just like” the one in National

Pork, Pet. 16, the result in National Pork compels dismissal here. That accords with the fundamental

“principle of treating similarly situated [parties] the

11

same”—which is critical to “the integrity of judicial review.” Teague v. Lane, 489 U.S. 288, 304 (1989) (plurality) (internal quotation marks omitted).

b. In any event, petitioner’s Marks theory is untenable. Petitioner reads National Pork to contain a

“five-Justice dissenting ‘majority’” (Pet. 26) establishing that “a challenge to Proposition 12 states a claim

under Pike.” Id. at 16. Petitioner derives that “holding[]” (id. at 19) by combining aspects of the four dissenting justices’ views with a portion of the concurring

opinion authored by Justice Barrett. See id. at i-ii, 1619, 24-25. That theory fails in multiple ways.

To begin with, Justice Barrett did not say that the

challengers in National Pork “state[d] a claim under

Pike.” Pet. 16. She instead described her view that

the challengers had adequately “allege[d] a substantial burden on interstate commerce.” Nat’l Pork, 598

U.S. at 394 (Barrett, J., concurring in part). But alleging a substantial burden is just the first step in

stating a Pike claim. See, e.g., id. at 377 (majority);

Exxon, 437 U.S. at 127-128.5 A plaintiff must also

plausibly allege that the burden is “clearly excessive

in relation to the putative local benefits.” Pike, 397

U.S. at 142. Justice Barrett never addressed that aspect of Pike because she believed it was impossible to

balance Proposition 12’s “incommensurable” burdens

and benefits. Nat’l Pork, 598 U.S. at 393 (Barrett, J.,

concurring in part). That belief, coupled with Justice

Barrett’s agreement that Proposition 12 serves legitimate moral and public health-based interests, see id.

at 381-382 (plurality), appears to be inconsistent with

also Flynt v. Bonta, 131 F.4th 918, 925 (9th Cir. 2025)

(Bress, J.) (“The Justices in Pork Producers . . . agreed that

whether a law imposes a substantial burden on interstate commerce is a threshold inquiry[.]”).

5 See

12

petitioner’s view that the alleged economic burdens

“clearly” exceed the putative local benefits.

More fundamentally, dissenting opinions cannot be

used to produce “controlling” precedent. Pet. 19.

“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of

five Justices, ‘the holding of the Court may be viewed

as that position taken by those Members who concurred in the judgment[] on the narrowest grounds.’”

Marks, 430 U.S. at 193 (emphasis added). Dissenting

justices, of course, do not “concur in the judgment.”

See, e.g., United States v. Robison, 505 F.3d 1208, 1221

(11th Cir. 2007) (“Marks talks about those who ‘concurred in the judgment[],’ not those who did not join

the judgment.”).

That view tracks the way that this Court has previously described the nature and source of binding legal precedent. In Seminole Tribe of Florida v. Florida,

517 U.S. 44, 67 (1996), for example, the Court explained that precedent typically arises from the combination of “the result” in a particular case and the

portions of the Court’s legal reasoning “necessary to

that result.” Because dissenting opinions do not provide reasoning “necessary to [the] result,” id., they are

not a source of binding precedent. See, e.g., King, 950

F.2d at 783. Consistent with that view, the Court held

in Sackett v. EPA, 598 U.S. 651, 659 n.3 (2023), that

Rapanos v. United States, 547 U.S. 715 (2006), did not

produce any controlling precedent. The holding in

Sackett parted ways with several lower-court decisions that had attempted to derive controlling precedent by “combining [the] dissent” in Rapanos with

either the plurality or concurring opinions in that case.

E.g., United States v. Johnson, 467 F.3d 56, 65 (1st

13

Cir. 2006); see also United States v. Donovan, 661 F.3d

174, 182 (3d Cir. 2011).

The authorities invoked by petitioner did not adopt

a contrary view of the significance of dissents. See Pet.

23-25. In Alexander v. Sandoval, 532 U.S. 275, 281

(2001), the Court merely “assume[d] for purposes of

deciding [the] case” that certain views expressed in

prior plurality and dissenting opinions were correct.

In League of United Latin American Citizens v. Perry,

548 U.S. 399, 414 (2006), the Court described the fractured opinions in Vieth v. Jubelirer, 541 U.S. 267

(2004), but did not treat any of those opinions as binding. And in Nichols v. United States, 511 U.S. 738, 740

(1994), the Court addressed an “issue that splintered

the Court in Baldasar v. Illinois, 446 U.S. 222 (1980).”

Rather than treating any aspects of Baldasar as binding, however, the Court “reexamin[ed] that decision”

and reached a different conclusion in an opinion that

commanded a majority of the Court. 511 U.S. at 746;

see also Hughes v. United States, 584 U.S. 675, 680

(2018) (similar).

c. Petitioner also contends that its Pike claim implicates “critically important issues” and a “hopeless

split among the circuits.” Pet. 4, 22. But petitioner’s

arguments about the legal and practical implications

of its Pike claim (see id. at 20-22) were before the Court

in National Pork. Compare, e.g., 598 U.S. at 390-391,

with, e.g., id. at 407 (Kavanaugh, J., concurring in part

and dissenting in part). Petitioner does not identify

any intervening developments that would justify certiorari here. To the contrary, the pork industry appears to be performing quite well. See, e.g., Global Ag

Media, Great Improvement Seen in US Pork Sector in

2024, (July 16, 2024), https://tinyurl.com/4tx5uz54

(“[e]xports are in outstanding shape,” “falling feed

14

costs [have] played a pivotal role in improving producer profitability,” and the number of “pigs [produced]

per litter continues to surge”).

Petitioner’s allegation of a circuit conflict is no

more persuasive. To date, only one published appellate decision has squarely addressed the scope of the

Court’s holding in National Pork as to Pike. See Truesdell v. Friedlander, 80 F.4th 762, 774 (6th Cir. 2023)

(treating the four-justice plurality opinion as “controlling”). And in the two years since National Pork was

decided, the courts of appeals have uniformly respected this Court’s instruction to exercise “‘extreme

caution’” before allowing a Pike claim to move beyond

the pleading stage. 598 U.S. at 390 (majority); see,

e.g., Just Puppies, Inc. v. Brown, 123 F.4th 652, 670

(4th Cir. 2024); Forever Fencing, Inc. v. Bd. of Cnty.

Comm’rs of Leavenworth Cnty., 2024 WL 3084973, at

*5 (10th Cir. June 21, 2024).

Abstracting to a higher level of generality, petitioner asks the Court to address a “circuit split on how

to interpret fractured Supreme Court opinions.” Pet.

22. But petitioner fails to establish a live conflict. According to petitioner, four circuits have “held that dissenting votes may count towards determining the

majority view . . . from a fractured Supreme Court

opinion.” Id. at 23. The decisions of two of those four

circuits—the First and Third—were overturned by the

Court’s recent decision in Sackett. Supra pp. 12-13;

see Johnson, 467 F.3d at 65; Donovan, 661 F.3d at 182.

And there is no indication that those circuits will persist in their views about the relevance of dissenting

opinions after Sackett.

The other two circuit decisions mentioned by the

petition do not support petitioner’s views about the

proper role of dissents. See Pet. 23. In Holland v. Big

15

River Minerals Corp., 181 F.3d 597, 606 (4th Cir.

1999), the Fourth Circuit did not decide whether the

splintered opinions in Eastern Enterprises v. Apfel,

524 U.S. 498 (1998), produced controlling precedent. 6

And in Hopkins v. Jegley, 968 F.3d 912, 915 (8th Cir.

2020), the Eighth Circuit merely applied the Marks

rule to treat the Chief Justice’s concurring opinion in

June Medical Services v. Russo, 591 U.S. 299 (2020),

as controlling.7 The Eighth Circuit did not suggest (let

alone hold) that it was necessary to consult the views

of dissenting justices. See Hopkins, 968 F.3d at 915.

3. Finally, petitioner argues that granting review

would enable the Court to address “many other claims”

that were not presented in National Pork, including

claims under the Due Process Clause, the Privileges

and Immunities Clause, and the Packers and Stockyards Act. Pet. 19; see id. at 3, 20, 30-33. For their

part, petitioner’s amici invite the Court to address several claims that petitioner does not even mention, including claims under the Full Faith and Credit Clause,

see Br. of Iowa et al. 14-15, the Import-Export Clause,

see id. at 12-14, and article IV’s guarantee of a “republican form of government,” e.g., Br. of Phyllis Schlafly

Eagles 8; see id. at 8-10. For the reasons provided by

the court of appeals, the additional claims raised by

petitioner are plainly meritless. See Pet. App. 8a-11a.

And each of these additional claims falls outside the

questions that petitioners chose to present, which focus solely on the dormant Commerce Clause. See Pet.

i-ii; see also S. Ct. R. 14.1(a) (“Only the questions set

6 See, e.g., Holland, 181 F.3d at 606 (assuming without deciding

that the concurring and dissenting opinions “worked [a] change

with respect to takings jurisprudence”).

This Court later abrogated Hopkins in Dobbs v. Jackson

Women’s Health Organization, 597 U.S. 215 (2022).

7

16

out in the petition, or fairly included therein, will be

considered by the Court.”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

THOMAS S. PATTERSON

Senior Assistant Attorney General

SAMUEL T. HARBOURT

Deputy Solicitor General

R. MATTHEW WISE

Supervising Deputy Attorney General

KRISTIN A. LISKA

Deputy Attorney General

April 11, 2024